86 F.4th 1243
9th Cir.2023Background
- Shannon Poe operated an instream suction dredge on Idaho’s South Fork Clearwater River across multiple seasons (42 days total) and never obtained an NPDES (Section 402) permit.
- Suction dredging excavated riverbed rock, gravel, sand, and sediment, ran material through a sluice to remove gold, and discharged the remaining turbid wastewater and tailings back into the river; tailing piles and deep holes in the bed were created.
- Idaho Conservation League (ICL) sued Poe under the Clean Water Act (CWA), alleging unlawful discharges of pollutants without an NPDES permit.
- Poe argued (1) no “addition” of pollutants occurred because material was merely moved within the same waterbody, and (2) any discharged material was “dredged” or “fill” material subject exclusively to Corps Section 404 permitting.
- The district court granted summary judgment to ICL, enjoined dredging without an NPDES permit, and imposed a civil penalty; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Poe’s suction dredge activity constitute an “addition” of a pollutant under the CWA, requiring an NPDES permit? | Poe’s dredging resuspended and discharged bed materials and thus added pollutants; NPDES required. | No unlawful "addition": material was from the same waterbody and merely transferred/returned. | Court held dredging adds pollutants; Rybachek controls — resuspension/processing of bed material is an "addition." |
| Is the processed discharge from suction dredging "dredged or fill material" (Corps §404) or a pollutant subject to §402? | The discharged material is processed dredged material and therefore falls under Corps §404 permitting. | Processed residue becomes pollutants (sand, rock, industrial/solid waste) regulated under EPA §402; agencies so interpreted. | Court held processed discharge is a pollutant requiring §402 (deferred to EPA/Corps joint interpretation); §404 does not exclusively cover processed placer-mining waste. |
Key Cases Cited
- Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) (placer mining resuspension can be an “addition”; court deferred to EPA interpretation)
- Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 541 U.S. 95 (2004) (transfer of polluted water within same waterbody is not an “addition”)
- L.A. Cnty. Flood Control Dist. v. Nat. Res. Def. Council, Inc., 568 U.S. 78 (2013) (flow from improved to unimproved portion of same waterway not a CWA discharge)
- Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009) (agency interpretations govern interplay of §402/§404 when statute/regulations ambiguous)
- Borden Ranch P’ship v. U.S. Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001) (reaffirming Rybachek that removing and returning streambed material can be an "addition")
- Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305 (9th Cir. 1993) (elements required to prove CWA NPDES violation)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (deference principles for agency interpretations of ambiguous regulations)